from the DHS:-everywhere-you-want-to-be dept

The DHS is back in court, arguing for its "right" to expand border searches to cover the entire country. The case in which Homeland Security investigators are making this dubious claim involves the placement of a GPS device on a truck crossing the Canadian border… which FBI agents then tracked all the way down into California.

The "bust" carried out in Southern California turned up plenty of legal frozen pastries and four bags of a cocaine-like substances known as regular-ass sugar. The FBI posited this was a trial run for actual drugs and chose to take its collected evidence to court, where it was promptly thrown out by the presiding judge. As the judge saw it, tracking a vehicle inland requires a warrant. The "border exception" to warrant requirements can't be expanded to cover searches performed miles from the 100-mile "Constitution-free zone."

A top Homeland Security Investigations official has told a federal court that it remains the agency's policy that officers can install a GPS tracking device on cars entering the United States "without a warrant or individualized suspicion" for up to 48 hours.

There is no such time limit, HSI Assistant Director Matthew C. Allen also told the court, for putting such trackers on "airplane, commercial vehicles, and semi-tractor trailers, which has a significantly reduced expectation of privacy in the location of their vehicles."

The argument, laid out very briefly in the government's filing [PDF], is basically that DHS policy says this sort of thing is OK, so there's no need to worry about Constitutional protections or precedential Supreme Court decisions.

HSI exercises its border-search authority for the purpose of protecting national security and revenue of the United States. Pursuant to this authority, it is policy that a customs officer may install a GPS tracking device on a vehicle at the United States border without a warrant or individualized suspicion. HSI limits warrantless GPS monitoring to 48 hours, with the exception of airplanes, commercial vehicles, and semi-tractor trailers, which have a significantly reduced expectation of privacy in the location of their vehicles. It is HSI's position that such policy is consistent with the U.S. Supreme Court's decisions in United States v. Jones, 565 U.S. 400 (2012), and United States v. Flores-Montana, 541 U.S. 149 (2004).

It may be HSI's position but it's not the judge's position, nor is it a Constitutionally-sound position. The judge has already determined this inland tracking required a warrant, so simply restating DHS policy isn't going to reverse this decision. The government will probably get a chance to expound on this argument at a later date, but for now, all it's offering is a conclusory reiteration of internal policy. That's not even close to the same thing as an argument supported by caselaw and precedential decisions.

But for the rest of us, the DHS is at least clarifying its stance on the border warrant exception: it can track you anywhere you travel in the country, so long as a) it's within 48 hours of the warrantless placement of the tracking device, or b) the vehicle involved has any commercial purpose. The argument it barely makes still doesn't address the fact there's no current exception for warrantless deployment of GPS tracking devices.

The "border exception" the government claims exists actually doesn't. The law says nothing about border freebies and vehicles crossing the border are, more likely than not, going to travel outside of the area where the border exception is applicable. This is basically the DHS claiming because it can search your vehicle without a warrant at a border crossing, it can search it anywhere else in the US provided your vehicle crossed the US border at some point in the recent past. If the government can somehow convince the court its border protection mandates allow for inland searches, the Fourth Amendment will be null and void.

At the heart of it is a GPS tracking device. The government installed it on a truck driven by suspected drug smugglers when it crossed the Canadian border into the US. It then used that device to track the truck as it traveled down to California. The resulting bust only uncovered some bags of sugar, but a previous stop of the same truck had turned up 194 kilos of cocaine.

The defendants in the case have had the evidence suppressed. The ruling [PDF] was handed down late last month. It points to the Supreme Court's 2012 Jones decision, which held that placing GPS devices on vehicles was a search under the Fourth Amendment. Warrants are needed to place the devices. Long-term tracking is also out of the question if warrants aren't obtained.

The government argued it didn't need a warrant because it placed the device on the truck at the Canadian border. This would be the "border exception" to the Fourth Amendment -- one carved out by the courts which allows all kinds of warrantless searches to be performed in the name of border security.

But the judge doesn't buy this attempt to salvage ill-gotten evidence. The government cites a number of cases involving searches of vehicles performed at the border -- some more invasive than others -- where warrants weren't needed. The court finds these citations unavailing because they don't actually address what happened here: the placement of a GPS device at the border which was subsequently used to track a vehicle as it traveled far beyond the Canadian border.

The Court doubts that an analysis dependent on the physical aspects of the search is appropriate here where the search extends beyond the initial installation of the device.

And, having taken the Jones decision into account, the court definitely isn't going to allow the government to effectively expand the border search exception to cover searches performed well within the nation's borders.

[T]his Court is hesitant to mechanically apply the border search doctrine where the search stretches far beyond the conduct at the border to create a "precise comprehensive record of a person's movements." [...] Ultimately, the Court concludes the placement of a GPS device on a vehicle at the border, combined with the subsequent tracking of data over a prolonged period away from it, cannot be justified by the border search exception.

Wait, says the government, what about the extended border search doctrine, where we can perform warrantless searches so long as someone or something came across the border recently and we think something criminal is going on? The court says continuous monitoring isn't the same thing as a search dependent on two separate, but linked, predicates. This was a search that began at the border and never stopped.

While the initial placement of the GPS devices on Defendants' truck occurred at the border, the subsequent monitoring of the data over the almost 48 hours constitutes a continuous search… [I[t is this unceasing search over that period that precludes application of the extended border search doctrine.

The court also shuts down the government's request for other exceptions to be applied. The government tried to explain the discovery would have been "inevitable" based on its prior reconnaissance of the truck's route, but the court points out the same route wasn't taken this time and the FBI didn't actually know for a fact where it would eventually end up. It made assumptions but didn't have supportable facts.

As for the good faith exception, the court points out the only controlling case came from the Supreme Court, and it's pretty difficult to imagine well-trained federal agents with all their expertise would not be aware of the warrant requirement. Furthermore, there have been no opinions since Jones that explicitly carve out a "border exception" for GPS tracking device usage. It appears the government did nothing to ensure its actions were legal or Constitutional before engaging in this extended search.

The Court is not persuaded the good faith exception stretches to encompass the government's reasoning for its application. There is no evidence the agents were advised by an attorney that they need not obtain a warrant. Nor has the government been able to point the Court to any precedent that could have served as a basis for the purported 48-hour rule or its looser application to semi-trucks.

The evidence is gone -- what there was of it. The government isn't abandoning its prosecution and it may ask the Ninth Circuit to allow it to apply the border search exception anywhere it wants to. But for now, it's been told the exception doesn't cover hours of inland monitoring, which is a conclusion federal agents should have been able to reach on their own -- long before engaging in 48 hours of continuous rights violations.

from the better-than-maintaining-the-status-quo dept

The Fourth Circuit Appeals Court has handed down a decision [PDF] suggesting the Fourth Amendment might still provide some minimal protection at our nation's borders. Most rights are considered to be waived -- especially those affecting privacy -- thanks to a prevailing national security interest that is seldom challenged by courts. Two years ago, a California federal court looked at the Supreme Court's Riley decision (which instituted a warrant requirement for cellphone searches) and decided that simply didn't apply within 100 miles of US borders.

This precedential decision doesn't cut the government quite as much slack. While it recognizes border security is a national priority, it's not as quick to give federal agencies a free pass on Fourth Amendment exceptions. The underlying facts make it a less-than-ideal challenge, but even so, the court finds enough to work with in the Riley decision to suggest not all border searches should be suspicionless.

Hamza Kolsuz, the appellant, had been caught twice exiting the country with firearms parts in his luggage. Those incidents occurred in 2012 and 2013. The parts were seized both times, with federal agents explaining licensing requirements but choosing not to arrest Kolsuz for violating federal law.

In 2016, the same thing happened again. Agents searched his luggage and found firearms parts. One agent then performed a cursory examination of the phone Kolsuz was carrying. This search the court has zero issues with. It's easily covered by the border search exception.

At a border – or at a border’s “functional equivalent,” like the international airport at which Kolsuz was intercepted – government agents may conduct “routine” searches and seizures of persons and property without a warrant or any individualized suspicion.

Not much Fourth to be had there and the underlying circumstances -- the discovery of more firearms parts being moved out the country without proper export licenses -- gave the agents more reasonable suspicion than they actually needed.

But it wasn't the only search performed on Kolsuz's phone. An offsite forensic search followed the airport search.

At that point, CBP Special Agent Adam Coppolo initiated the second search of Kolsuz’s phone, this one commonly known as a “forensic” search. Coppolo first transported the phone approximately four miles from Dulles to the Homeland Security Investigations office in Sterling, Virginia. There, Computer Forensic Agent Michael Del Vacchio attached the phone to a Cellebrite Physical Analyzer, which extracts data from electronic devices, and conducted an advanced logical file system extraction. The phone remained in airplane mode throughout, so the forensic examination did not reach data stored remotely – or “in the cloud” – and was instead limited to data stored on the phone itself. Even so, the data extraction process lasted for a full month, and yielded an 896- page report that included Kolsuz’s personal contact lists, emails, messenger conversations, photographs, videos, calendar, web browsing history, and call logs, along with a history of Kolsuz’s physical location down to precise GPS coordinates.

This search was challenged, with Kolsuz arguing the phone was no longer being searched under the border exception, but rather as "cident to arrest," subject to the Supreme Court's Riley decision. The court agrees… to a point. It doesn't find that taking the phone offsite for a deeper search affected the "border search" nexus. The search was still related to the transnational crime of weapons smuggling. It's the intrusiveness of the search that troubles the court.

We also agree with the district court that under Riley, the forensic examination of Kolsuz’s phone must be considered a nonroutine border search, requiring some measure of individualized suspicion.

It's not quite a warrant requirement, but it does suggest federal agents should no longer perform highly-intrusive searches without justification. However, the court won't go as far as to institute a warrant requirement.

What precisely that standard should be – whether reasonable suspicion is enough, as the district court concluded, or whether there must be a warrant based on probable cause, as Kolsuz suggests – is a question we need not resolve: Because the agents who conducted the search reasonably relied on precedent holding that no warrant was required, suppression of the report would be inappropriate even if we disagreed.

It's not a hugely helpful decision but it does show this court isn't willing to allow the border search exception to continue to expand, swallowing up the few shreds of Fourth Amendment that remain. Forensic searches must be justified with at least particularized reasonable suspicion, which is more than other courts have been willing to hold.

from the still-in-US-territory,-but-none-of-your-rights-apply dept

If all goes well, we might have the US border join the rest of the United States in recognizing citizens' Fourth Amendment rights. The Supreme Court's Riley decision made it clear law enforcement needed to obtain warrants before searching people's cellphones. Unfortunately, the so-called "border exception" -- upheld by at least one court -- says securing the border is more important than recognizing people's rights.

The EFF and ACLU -- along with the 10 US citizens and one permanent resident they're representing -- are suing DHS, CBP, and ICE for violating the Constitutional rights of the plaintiffs by warrantlessly searching their devices. Not only did the government search their devices, but in some cases, held onto the devices for weeks. One plaintiff's phone is still in the hands of the CBP, having originally been taken from the plaintiff in January.

The filing [PDF] provides details of the plaintiffs' interaction with government agents at US borders. All plaintiffs were taken to secondary screening where they were coerced into handing over their devices and, in some cases, passwords. This is all being done with zero articulable suspicion or probable cause. Agents imply devices will be returned sooner if those they've detained are compliant. But even complicity can result in citizens having to leave their devices in the hands of the government.

Even when travelers comply with officers’ demands to unlock their devices or provide their device passwords, officers sometimes confiscate the devices anyway. For example, even though Ms. Alasaad provided the password to her phone, and CBP officers had already searched Mr. Alasaad’s unlocked phone, officers still confiscated both of the couple’s phones. CBP kept both phones for approximately 15 days.

These lengthy device confiscations cause significant harm. Many travelers, including Plaintiffs, rely on their electronic devices for their work and livelihoods, as well as for communicating with family members. Losing access to electronic devices and the information they contain for extended periods of time can disrupt travelers’ personal and professional lives. Confiscation of electronic devices is especially harmful to those who need, but do not have or cannot afford, replacement devices, and those who need but did not back up stored data.

As a result, the plaintiffs have spent thousands of dollars replacing devices the government kept without offering a legitimate law enforcement/national security reason for doing so. As the lawsuit points out, this type of behavior is unconstitutional.

When CBP and ICE officers confiscate electronic devices pursuant to their policies and practices for the purpose of searching those devices’ content, such confiscations violate the Fourth Amendment in at least three distinct ways:

a. First, these confiscations are not justified at their inception when they are affected absent probable cause.

b. Second, these confiscations are excessive in scope, because officers confiscate not just the locked devices they are unable to search at the port of entry, but also the unlocked devices they are able to search and that they sometimes have already searched.

c. Third, these confiscations are excessive in duration where the duration of confiscation of locked devices is unreasonable in relation to the time actually needed to search the devices.

In addition to the Fourth Amendment violations, there are also concerns about the First. A few of those participating in this lawsuit are journalists. CBP officers not only searched their phones, but questioned them directly about sources and subjects.

Even the plaintiffs who aren't journalists have valid First Amendment complaints. If the government's going to demand access to writings, photos, videos, and other forms of expression stored on electronic devices, this limits future expressive acts. People whose devices have been seized and searched are less likely to give the government as much to dig through the second time around. This means less writing, fewer photos, and steering clear of any artistic creation the government might somehow misconstrue as threatening, criminal, or simply critical of rote government abuse.

As the plaintiffs point out, these searches aren't Constitutional, but they are allowed by DHS and CBP policies -- which state agents may search and seize phones without reasonable suspicion. To that end, the lawsuit asks the court to find the policies officially unconstitutional and ban the government from searching devices at the border without a warrant.

It's a long shot, given the judicial branch's general deference to all things national security-related. But it will be nice to see the government explain how the Supreme Court's Riley decision somehow doesn't apply to American citizens just because they're entering or leaving the country.